AUSTRALIAN COMPETITION TRIBUNAL
Application by South Australian Council of Social Service Incorporated [2016] ACompT8
Review from: Australian Energy Regulator File number: ACT 12 of 2015 Tribunal: MIDDLETON J (DEPUTY PRESIDENT)
PROFESSOR K DAVIS (MEMBER)
MR R STEINWALL (MEMBER)Date of Determination: 2 May 2016 Catchwords: CONSUMER LAW – application for leave to review decision of Australian Energy Regulator – application for leave to amend application for review – consideration of serious issue to be heard – consideration of s 71O(2)(c) of the National Electricity Law – whether applicant raised matter in a submission to the AER before reviewable regulatory decision made. Legislation: National Electricity (South Australia) Act 1996 (SA)
National Electricity Law
National Electricity Rules
Cases cited: Application by EnergyAustralia and Others [2009] ACompT 8
Application by Ergon Energy Corporation Limited (Street Lighting Services) (No 6) [2010] ACompT 14
Applications by Public Interest Advocacy Centre Ltd and Ausgrid [2016] ACompT 1
Application by United Energy Distribution Pty Limited (No 2) [2012] ACompT 1
Date of hearing: 2 May 2016 Category: Catchwords Number of paragraphs: 43 Counsel for South Australian Council of Social Service Incorporated: Mr R Dick SC with Dr V Priskich Solicitor for South Australian Council of Social Service Incorporated:
Public Interest Advocacy Centre Counsel for Australian Energy Regulator: Mr M O’Bryan QC with Mr T Clarke Solicitor for Australian Energy Regulator: Australian Government Solicitor Council for South Australia Power Network: Miss R C A Higgins Solicitor for South Australia Power Network: Gilbert + Tobin IN THE AUSTRALIAN COMPETITION TRIBUNAL
ACT 12 of 2015 RE: APPLICATION UNDER SECTION 71B OF THE NATIONAL ELECTRICITY LAW FOR A REVIEW OF A DISTRIBUTION DETERMINATION BY THE AUSTRALIAN ENERGY REGULATOR IN RELATION TO SA POWER NETWORKS PURSUANT TO CLAUSE 6.11.1 OF CHAPTER 6 OF THE NATIONAL ELECTRICITY RULES
BY: SOUTH AUSTRALIAN COUNCIL OF SOCIAL SERVICE INCORPORATED (ABN 93 197 662 296)
Applicant
TRIBUNAL:
MIDDLETON J, (DEPUTY PRESIDENT)
PROFESSOR K DAVIS (MEMBER)
MR R STEINWALL (MEMBER)DATE OF DETERMINATION:
2 MAY 2016
WHERE MADE:
MELBOURNE
THE TRIBUNAL DETERMINES THAT:
1.The application for leave to review the distribution determination of the Australian Energy Regulator in relation to SA Power Networks by South Australian Council of Social Service Incorporated be dismissed.
REASONS FOR DETERMINATION
INTRODUCTION
On 29 October 2015, the Australian Energy Regulator (AER) made a distribution determination regarding SA Power Networks (‘SAPN’) for the regulatory control period 1 July 2015 to 30 June 2020 (‘Final Decision’).
On 19 November 2015, South Australian Council of Social Service Incorporated (‘SACOSS’) filed an application for review of the Final Decision pursuant to s 71B of the National Electricity Law (being the Schedule to the National Electricity (South Australia) Act 1996 (SA)) (‘SACOSS’sApplication’). SACOSS contended that, in respect of the AER’s determination on operating expenditure (‘opex’) in the Final Decision, the AER erred by failing to properly assess whether SAPN’s 'corporate and other operating costs' (being a component of base opex) were efficient costs. SACOSS’s Application…
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- Case
- [2016] ACompT 8
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the applicants had the right to amend their application for review, which would allow them to include additional claims. The applicants sought to amend their application to argue that the AER had made a reviewable regulatory decision before they had the opportunity to raise certain matters. This issue was crucial as it involved the interpretation of section 71O(2)(c) of the National Electricity Law, which outlines the circumstances under which an application for review can be made. The court had to determine whether the applicants had indeed raised the relevant matters within the required timeframe and if their proposed amendments would be admissible.
In reaching its decision, the court considered the procedural history of the case and the legal framework governing applications for review. The court found that the applicants had not raised the specific matters they sought to include in their amended application before the AER made its reviewable regulatory decision. Consequently, the court held that the applicants did not meet the criteria for amending their application as set out in the relevant legislation. As a result, the application for leave to amend the review application was dismissed.
The final orders of the court were that the application for leave to review the AER's decision regarding SA Power Networks, brought by the South Australian Council of Social Service Incorporated, be dismissed. The court's ruling effectively upheld the AER's decision, barring the applicants from amending their review application to include additional claims. This outcome underscores the importance of timely submissions in regulatory proceedings under the National Electricity Law.
Orders
Orders of the court
The application for leave to review the distribution determination of the Australian Energy Regulator in relation to SA Power Networks by South Australian Council of Social Service Incorporated be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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